Orissa High Court
Sumita Sahani vs Mamata Sahoo And Another on 7 December, 2016
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
R.S.A.No.4 of 2010
From a judgment and decree dated 24.9.2009 & 24.10.2009
respectively passed by Sri K.C.Mohapatra, learned Additional
District Judge, FTC I, Cuttack in R.F.A.No.9 of 2009 confirming
the judgment and decree dated 24.12.2008 and 2.1.2009
respectively passed by Shri Satyapira Mishra, learned Civil
Judge (Jr.Division), First Court, Cuttack in Title Suit No.188 of
2001.
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Sumita Sahani .... Appellant
Versus
Mamata Sahoo and another .... Respondents
For Appellant -- Mr.M.R.Sarangi,
Advocate
For Respondents -- Mr.S.C.Samantrary,
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing :17.11.2016 & Date of Judgment: 07.12.2016
DR.A.K.RATH, J.Defendant No.2 is the appellant against a confirming judgment.
22. Respondent no.1 as plaintiff instituted the suit for eviction of defendants from the suit property and for realization of arrear house rent and damages. The case of the plaintiff is that the suit schedule house standing over plot no.869 under khata no.952 appertaining to holding no.379 in ward no.14 of Cuttack Municipal Corporation originally belonged to Saran Pradhan. After his death, his legal heirs alienated the entire plot no.869 with an area of Ac.0.162 dec. inclusive of the suit property in favour of the plaintiff by means of a registered sale deed no.4344 dated 11.10.1999. Saran Pradhan had inducted defendant no.1 as a tenant into the suit property. The plaintiff permitted the defendant no.1 to continue as a tenant in the suit property under her on payment of house rent @ Rs.400/- per month till December, 1999. The defendant no.1 undertook to give vacant possession of the suit premises to the plaintiff by 31st December, 1999. The defendant no.1 did not vacate the suit property. The plaintiff issued notice under Section 106 of the Transfer of Property Act (hereinafter referred to as "T.P.Act") terminating the tenancy. Despite receipt of notice, the defendant no.1 did not vacate the suit property nor replied.
3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. Case of the defendants is that they were in possession of the suit property as a tenant under Saran Pradhan. He failed to evict the defendants from the suit property. He entered into an agreement with defendant no.2 on 27.6.1995 to sell the suit 3 property for a consideration of Rs.2,00,000/-, received an amount of Rs.1,50,000/- towards part consideration and promised to execute the R.S.D. after ten days of receiving permission from the Urban Land Ceiling Authority. However, before executing the sale deed, he expired on 16.7.1995. Thereafter defendant no.2 requested the sons of Saran Pradhan to execute the sale deed. But they did not execute the sale deed for which defendant no.2 filed T.S.No.334 of 1998 against the sons of Saran Pradhan for specific performance of contract. Having come to know about the institution of such a suit by defendant no.2, sons of Saran Pradhan have executed a nominal sale deed in favour of the plaintiff. The same is illegal and not binding on her. To defeat the suit filed by defendant no.2, the plaintiff sent notice under Section 106 of T.P. Act. They are in possession of the suit property as of right, on the basis of the said agreement for sale and not as a tenant under the plaintiff. As the plaintiff is not the landlord, they are not liable to be evicted from the suit property.
4. On the inter se pleadings of the parties, the learned trial court struck eight issues, out of which, Issue Nos.3, 4 and 5 are pivotal. The same are:-
"3. Whether the plaintiff has got right, title and interest over the suit house and suit land ?
4. Whether the defendants are tenants under the plaintiff ?4
5. Whether the plaintiff is entitled to a decree of eviction against the defendant on the suit schedule property ?"
5. To substantiate the case, the plaintiff had examined two witnesses and on his behalf, eight documents were exhibited. On behalf of the defendants, five witnesses had been examined and seven documents were exhibited. The learned trial court on a threadbare analysis of the record, both oral and documentary and pleadings, came to hold that the plaintiff has right, title and interest over the suit land and the house standing thereon and, accordingly answered Issue No.3 in favour of the plaintiff. It further held that the defendants are the tenants under the plaintiff and the plaintiff is entitled to a decree of eviction and, accordingly answered Issue nos.4 and 5 in favour of the plaintiff. The suit was decreed. Assailing the judgment and decree of the learned trial court, defendant no.1 unsuccessfully challenged the said judgment and decree of the learned trial court in R.F.A.No.9 of 2009 before the learned Ad hoc Additional District Judge, F.T.C. I, Cuttack, which was eventually dismissed.
6. The second appeal was admitted on the following substantial questions of law:-
"(i) Whether the learned courts below have committed an illegality in not considering the fact that possession of the property was delivered to the appellant pursuant to the agreement for sale, and, as such, section 53 of the T.P.Act comes into operation ?5
(ii) Whether the learned lower appellate court acted contrary to law in holding that the agreement to sale was not genuine in the absence of specific pleadings and proof of fraud by the plaintiff ?"
7. Heard Mr.M.R.Sarangi, learned Advocate for the appellant and Mr.S.C.Samantray, learned Advocate for the respondents.
8. Mr.Sarangi, learned counsel for the appellant submitted that the defendants were the tenants under the original owner Saran Pradhan, who executed an agreement to sale the suit property in their favour and received a part consideration. The defendants were all along ready and willing to perform their part of contract. They are in possession of the house and as such Section 53-A of the T.P.Act comes into play. He further submitted that the plaintiff was aware of the fact of there was an agreement to sale between the owner and the defendants as well as occupation of the house by the defendants. Thus, the plaintiff has deemed notice of the occupation of the house by the defendants.
9. Per contra, Mr.Samantray, learned counsel for the respondents submitted that ground no.(i) does not involve any substantial question of law inasmuch as the same does not arise for consideration in this case. He further submitted that the plaintiff is a bona fide purchaser for value of the suit property. When the defendants did not vacate the suit house, the plaintiff issued notice under Section 106 of the T.P.Act to 6 them and thereafter filed the suit for eviction. He further submitted that the defendants became tenant under her. Relying on Section 63 of the T.P.Act, he submitted that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The section does not insist that transfer will take effect only when the tenant attorns. A transferee of the landlord's right steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. Since attonerment by tenant is not required, a notice under Section 106 of the T.P.Act by the transferor landlord would be proper and so also the suit for ejectment. He relied on a decision of the apex Court in the case of Dr. Ambica Prasad Vrs. Md.Alam, AIR 2015 SC 2459.
10. Section 53 of the T.P.Act provides that every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. The same operates in different field. At this juncture, Mr.Sarangi, learned counsel for the appellant submitted that the substantial question of law enumerated in ground no.(i) has not been properly formulated. Instead of "Section 53-A", "Section-53" has been typed. The same should be Section 53-A of the T.P.Act.
11. Section 53-A of the T.P.Act, which is hub of the issue, is quoted below:-
7"53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
12. In Probodh Kumar Das and others Vrs. Dantmara Tea Co. Ltd. and others, AIR 1940 PC 1, it was held that amendment of the law effected by the enactment of Section 53-A conferred no right of action on a transferee in possession under an unregistered contract of sale. The right conferred by Section 8 53-A is a right available only to the defendant to protect his possession. The Section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee.
13. In State of Uttar Pradesh Vrs. District Judge and others, AIR 1997 SC 53, the apex Court held that Section 53-A provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally conveyed by Sale Deed to the proposed transferees.
14. In D.S.Parvathamma Vrs. Srinivasan, AIR 2003 SC 3542, the apex Court held that the essential features of the equitable doctrine of part performance as statutorily modified and incorporated in Section 53-A abovesaid, to the extent relevant for the purposes of this case, are: (i) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, (ii) that the transferee has performed or is willing to 9 perform his part of the contract, and (iii) that the plea of part performance is not available to be raised against a transferee for consideration who has no notice of the contract or of the part performance thereof.
15. The present appeal may be examined on the anvil of the decisions cited supra. The learned trial court came to hold that the plaintiff has stated that after death of Saran Pradhan, defendants have filed Title Appeal No.234 of 1998 basing on the forged agreement of sale and they have suppressed the summons and only on 12.10.1999, the plaintiff and her husband could know the existence of such an agreement of sale which was the subject matter of dispute in the said suit. The defendants have not specifically denied the same. The defendants have not adduced any evidence, either oral or documentary, to discharge the onus that the plaintiff was having prior intimation or notice of the agreement to sale between defendant no.2 and late Saran Pradhan prior to transfer of the land under Ext.1. Thus the plea of part performance under Section 53-A of the T.P.Act cannot be taken against the plaintiff by the defendants as shield. It further held that by virtue of the registered sale deed, title has passed on the plaintiff. The appellate court in a well discussed judgment concurred with the findings of the learned trial court and held that 53-A of the T.P.Act cannot be called in aid of protecting the possession of the defendants over the suit property from eviction therefrom by the plaintiff.
1016. In Dr.Ambica Prasad (supra), the apex Court held that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment.
17. In view of the authoritative pronouncement of the apex Court in the case of Dr.Ambica Prasad (supra), the inescapable conclusion is that after transfer of suit schedule house in favour of the plaintiff by the sons of Saran Pradhan, the plaintiff gets all rights and liabilities of lessor in respect of subsisting tenancy and the plaintiff steps in to the shoes of the landlord with the rights and liabilities of the transferor landlord in respect of subsisting tenancy. No attornment by the defendants is necessary to confer validity of transfer of the landlord's rights. Thus notice under Section 106 of the T.P.Act is a valid notice and suit is maintainable.
1118. The learned appellate court on vivid analysis of evidence on record, both oral and documentary, as well as pleadings, came to hold that execution of agreement to sale vide Ext.'B' by Saran Pradhan is not worthy of trust nor can it further the plea of defendants. The same is essentially a finding of fact. There is no perversity in the same.
19. Resultantly, the appeal, sans merit, is dismissed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 7th December, 2016/CRB.
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